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2011 DIGILAW 609 (PAT)

Shashikant Kumar v. Bank of Baroda

2011-04-11

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ORDER Heard learned counsel for the petitioner and learned counsel for the respondent Bank of Baroda. 2. The petitioner being aggrieved by the rejection of his request for compassionate appointment has approached this Court. The father of the petitioner died while in service of the Bank on 24.1.2003. The petitioner filed an application for compassionate appointment on 24.9.2003. The petitioner claims to be physically handicapped and filed a certificate dated 18.12.2004 to that effect before the respondent authorities. When the matter of the petitioner was under consideration, the Bank came out with a fresh scheme of compassionate appointment dated 10.3.2004. The said scheme provided that all pending matters in relation to appointment on compassionate ground shall be covered by the new scheme. It also provided that in case a person dies before the age of 50 years then his dependent can apply for either financial assistance or for appointment on compassionate ground; whereas if an employee dies after the age of 50 years his dependent can only apply for financial assistance from the Bank. The admitted position is that the father of the petitioner was aged about 55 years at the time of his death. 3. In view of the aforesaid new scheme, by letter dated 4.9.2004 the respondent authorities wrote to the petitioner to apply for financial assistance enclosing a proper form for the said purpose. Subsequently by another letter dated 3.2.2006 the request was repeated directing the petitioner to apply for financial assistance latest by 18.2.2006 failing which it would be presumed that he was not desirous of filing an application for financial assistance. The petitioner is aggrieved by the said two letters and has accordingly approached this Court for a direction to be granted appointment on compassionate ground. 4. Learned counsel for the petitioner submits that the father of the petitioner having died on 24.1.2003 much before the revised scheme dated 10.3.2004 the case of the petitioner ought to be considered in terms of the earlier scheme of 1998, under which the petitioner is qualified for appointment on compassionate ground. It is urged by learned counsel that the rights of the petitioner had accrued under the 1998 scheme and the same cannot be defeated by applying retrospectively the subsequent scheme dated 10.3.2004. It is urged by learned counsel that the rights of the petitioner had accrued under the 1998 scheme and the same cannot be defeated by applying retrospectively the subsequent scheme dated 10.3.2004. It is further submitted that the case of the petitioner for appointment can also not be defeated on the ground of his being overage, as stated in the counter affidavit, since under the rules there is provision of 10 years relaxation in the case of handicapped person and the petitioner belongs to the handicapped category. 5. In support of the aforesaid stand learned counsel relies upon a decision of a learned Single Judge of this Court in the case of Syed Imteyaz Hussain Vs. The Bank of Baroda & Ors. : 2006(4) PLJR 386 , in which in the case of an employee who died on 2.10.1999 this Court in paragraph-20 of the decision has held as follows : "20. In the aforesaid facts and circumstances as well as the well settled principles of law it has to be held that the Schemes of the Bank dated 26.3.2004 (Annexure-9) and 3.3.2006 (Annexure13) are not applicable to the case of the petitioner and the respondent-Bank and its authorities are directed to consider the matter of petitioner's appointment on compassionate ground as per the Scheme of the Bank dated 18.8.1998 (Annexure14). Since the matter had already been delayed by the authorities concerned for more than six years, the respondent concerned is directed to pass an appropriate order in that regard in accordance with law and as per the aforesaid directions/observations within a period of two months from the date of receipt/production of a copy of this order. Accordingly, this writ petition is allowed." 6. Learned counsel also relies upon a decision of the Supreme Court in the case of P.Mahendran and others Vs. State of Karnataka and others : AIR 1990 SC 405 , in paragraph-5 of which it has been laid down as follows : "5. It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.” 7. Learned counsel for the respondent-Bank, on the other hand, submits that it is evident from the new scheme dated 10.3.2004 that the same applies to all the pending matters and since the case of the petitioner was admittedly under consideration when the new scheme was promulgated his case has to be considered in terms of the said scheme. It is urged that under the said scheme the petitioner's father having died at the age of about 55 years, i.e., exceeding 50 years, he would be only entitled to financial assistance and not for appointment on compassionate ground. It is under such circumstances that the Bank by its letters dated 4.9.2004 and 3.2.2006 had requested the petitioner to apply for financial assistance and had also forwarded the application form for the said purpose. 8. In this regard learned counsel relies upon a decision of a Division Bench of this Court in the case of the State Bank of India & Ors. Vs. 8. In this regard learned counsel relies upon a decision of a Division Bench of this Court in the case of the State Bank of India & Ors. Vs. Smt. Vindhwashini Devi & Anr. : 2008(4) BBCJ V-16, in paragraphs 16 to 20 of which it has been held as follows : "16. It would be, thus, seen from Clause (14) that the scheme for ex-gratia payment in lieu of appointment on compassionate ground was made effective from the date it was approved by the Executive Committee of the Central Board. That the Executive Committee of Central Board approved the Scheme on 4th August, 2005 is not in dispute. In categorical terms Clause (14) says that pending applications under the then compassionate appointment Scheme on the date of coming into force of the new Scheme will be dealt with in accord with the new Scheme for Payment of Ex-gratia lump sum amount on fulfilment of eligibility and conditions prescribed in the Scheme. The new Scheme, therefore, provides for consideration of all pending applications. 17. That the Bank has competence and power to make a provision like this is not challenged by the petitioners. In the entire writ petition, the petitioners have not put in issue the constitutional validity of Clause (14) of the new scheme. Since the legality and constitutionality of Clause (14) has not been challenged by the petitioners and the said Clause holds the field, in our considered view, the Bank cannot be directed to au inconsistent with the new Scheme which , had come into operation on 4th August 2005. 18. We find ourselves unable to countenance the view of the single Judge that the eligibility for compassionate appointment shall have to be considered on the basis of policy that was existing at the time of death of the employee and when such an application came to be made. The view of the single Judge that any subsequent change in policy shall not affect the right of consideration as per the then Scheme overlooks and ignores Clause (14) of the Scheme that came into effect from 4th August, 2005. 19. The plain language of Clause (14) provides that pending applications shall be considered under the new Scheme for payment of ex-gratia lump sum amount. 19. The plain language of Clause (14) provides that pending applications shall be considered under the new Scheme for payment of ex-gratia lump sum amount. What more could be the clarity in the intention of the Bank that the erstwhile Scheme of compassionate appointment having been replaced by the new Scheme for payment of ex-gratia lump sum amount, the pending applications shall be dealt with under the new Scheme. 20. Had the single Judge adverted to Clause (14) of the new Scheme, ought we know the view of the single Judge could have been otherwise. Be that as it may, we have no hesitation in holding that in terms of Clause (14) of he new Scheme for payment of ex-gratia lump sum amount effect on 4th August, 2005, no direction could be given to the Bank to consider the case of the petitioner no.2 in the light of the policy that was existing at the time of death of the employee.” 9. Learned counsel also relies upon a decision of the Supreme Court in the case of State Bank of India & Anr. Vs. Raj Kumar: 2010(2) BBCJ IV-353, paragraph-8 of which is quoted below : "8. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable. Further where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone• will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.” 10. In reply, learned counsel for the petitioner submits that where the authorities of the respondent Bank are responsible for the delay then the provisions of new scheme cannot be applied in the present matter. There was no laches on the part of the petitioner and even the senior officers of the Bank had sought explanation from the subordinates as to the delay in consideration of the claim of the petitioner. 11. I have considered the rival submissions of the parties. The entire case of the petitioner is based upon the proposition that there is a vested right to compassionate appointment on the basis of Circular/Rule prevailing on the date of death or filing of application. In Raj Kumar's case (supra) the Apex Court has clearly held that there was no vested right to compassionate appointment and the same can only be considered in terms of the Scheme that is in force at the time when the matter was taken up for consideration. Before the Apex Court as also a Division Bench of this Court in the case of Smt. Vindhwashini Devi (supra) the schemes of the State Bank of India were examined by which the earlier scheme of compassionate appointment had been modified and which provided that all pending matters shall be considered in terms of the new scheme. Before the Apex Court as also a Division Bench of this Court in the case of Smt. Vindhwashini Devi (supra) the schemes of the State Bank of India were examined by which the earlier scheme of compassionate appointment had been modified and which provided that all pending matters shall be considered in terms of the new scheme. In the said circumstances, it was held by the Apex Court and the Division Bench of this Court that when the matter is actually considered by the authorities of the Bank then the decision has to be taken on the basis of the new scheme as prevailing, specially when the scheme itself emphasized and reiterated the said fact. 12. From the aforesaid decisions it is evident that the case has to be considered in the light of the scheme dated 10.3.2004 and not the scheme of 1998. That being so, the petitioner can only be entitled for financial assistance and not for compassionate appointment as his father died at the age of about 55 years and not below the age of 50 years. 13. The reliance of learned counsel for the petitioner on the decision in Syed Imteyaz Hussain's case (supra) can be of no avail in view of the decision of the Division Bench of this Court and of the Supreme Court to the contrary. That case will have to be treated as not laying down the correct law. 14. Similarly, no help can be derived by the petitioner from the P.Mahendran's case (supra) as the same related to construction of statute or statutory Rule and it was clearly stated therein that the statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. In the present case there is an express intention that the scheme of 10.3.2004 shall apply to all pending matters. 15. Thus, in the light of the aforesaid discussions, it has to be held that there is no merit in the claim of the petitioner. The writ application is, accordingly, dismissed. 16. In the present case there is an express intention that the scheme of 10.3.2004 shall apply to all pending matters. 15. Thus, in the light of the aforesaid discussions, it has to be held that there is no merit in the claim of the petitioner. The writ application is, accordingly, dismissed. 16. Although a deadline till 18th February, 2006 was given to the petitioner to apply for financial assistance, by letter dated 3.2.2006, but considering the fact that the petitioner had immediately approached this Court thereafter, it is directed that if the petitioner files an application for financial assistance in terms of the scheme dated 10.3.2004 then the same shall be considered sympathetically by the respondent authorities and disposed of within a period of two months from the date of filing of the said application along with a copy of this order.